1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TYRONE REYNOLDS, Case No.: 3:22-cv-01830-JAH-BGS CDCR #2977, 12 ORDER DISMISSING ACTION FOR Plaintiffs, 13 FAILURE TO PROSECUTE vs. 14 R. CRLOLLOS, et al., 15 Defendants. 16 17 18 19 I. Introduction 20 Plaintiff Tyrone Reynolds, while housed at Kern Valley State Prison (“KVSP) and 21 proceeding pro se, filed a civil rights complaint pursuant to

in the Eastern 22 District of California. See Compl., ECF No. 1. Reynolds did not prepay the $402 civil filing 23 fee required by

(a), but did file a Motion to Proceed In Forma Pauperis 24 (“IFP”) pursuant to

(a). See ECF No. 2. On November 21, 2022, United 25 States Magistrate Judge Sheila Oberto determined that the claims giving rise to this action 26 occurred in San Diego County and transferred the matter to Southern District of California. 27 See ECF No. 3. 28 / / / 1 On December 9, 2022, the Court denied Reynolds’s IFP motion because he had not 2 submitted a “certified copy of the[ir] trust fund account statement (or institutional 3 equivalent) . . . for the 6-month period immediately preceding the filing of the complaint.” 4

(a)(2). See ECF No. 6. Without his certified trust account statements, the 5 Court was unable to assess the appropriate amount of the initial filing fee which may be 6 statutorily required to initiate the prosecution of Reynolds’s case. See 28 U.S.C. 7 § 1915(b)(1). Reynolds was granted forty-five (45) days from the date of the dismissal 8 Order in which to re-open his case by either paying the $402 statutory filing fee or filing a 9 renewed Motion to Proceed IFP which included a prison certificate and/or a certified copy 10 of his Inmate Trust Account Statement for the 6-month period preceding the filing of his 11 Complaint pursuant to

(a)(2) and S.D. Cal. CivLR 3.2(b).

12 On January 20, 2023, Reynolds filed a Motion for Extension of Time, asking this 13 Court for forty-five (45) additional days to comply with the Court’s December 9, 2022 14 dismissal Order because of delays obtaining his trust account statement at the prison where 15 he is incarcerated. See ECF No. 8. The Court granted Reynolds’s request on February 13, 16 2023, and gave him forty-five (45) days to either pay the $402 filing fee or submit a 17 renewed motion to proceed in forma pauperis which included a prison certificate and/or a 18 certified trust account statement for the 6-month period preceding the filing of his 19 Complaint. ECF No. 9. 20 II. Discussion 21 Plaintiff was given until March 30, 2023 to respond to the Court’s Order.

As of 22 today’s date, the Court has received no communication from Plaintiff. In such cases, the 23 Court has discretion to sua sponte dismiss a case for lack of prosecution or failure to comply 24 with a court order. Henderson v. Duncan,

(9th Cir. 1986); see also 25 Fed. R. Civ. P. 41(b) (providing for involuntary dismissal for failure to prosecute or comply 26 with the federal rules or court order). “In determining whether to dismiss a claim for failure 27 to prosecute or failure to comply with a court order, the Court must weigh the following 28 factors: (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need 1 to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the availability 2 of less drastic alternatives; and (5) the public policy favoring disposition of cases on their 3 merits.” Pagtalunan v. Galaza,

(9th Cir. 2002) (citing Ferdik v. 4 Bonzelet,

(9th Cir. 1992). As the Court has informed Plaintiff of 5 his need to either pay the filing fee or submit a properly supported in forma pauperis 6 application in order to proceed with this action, only factor three does not weigh in favor 7 of dismissal. See Yourish v. California Amplifier,

(9th Cir. 1999) (“The 8 public’s interest in expeditious resolution of litigation always favors dismissal.”); 9 Pagtalunan,

(“The trial judge is in the best position to determine whether 10 the delay in a particular case interferes with the docket management and the public 11 interest”);

(where defendants have not yet appeared, “[w]e have previously 12 recognized that pendency of a lawsuit is not sufficiently prejudicial in and of itself to 13 warrant dismissal.”); Nevijel v. North Coast Life Insurance Co.,

(9th 14 Cir. 1981) (noting that the court is not required to exhaust all alternatives prior to 15 dismissal); In re Phenylpropanolamine (PPA) Prod. Liab. Litig.,

(9th 16 Cir. 2006) (the public policy favoring disposition on the merits does not weigh against 17 dismissal where plaintiff’s “conduct impedes progress in that direction.”) Reynolds, 18 however, has provided the Court with no indication he intends to do either. 19 Weighing these factors, the Court finds dismissal is appropriate. See Hernandez v. 20 City of El Monte,

(9th Cir. 1998) (“we may affirm a dismissal where at 21 least four factors support dismissal or where at least three factors ‘strongly’ support 22 dismissal.”) (internal citation omitted) (quoting Ferdik,

; see also Rio 23 Prop., Inc. v. Rio Int’l Interlink,

(9th Cir. 2002) (“While the public 24 policy favoring disposition of cases on their merits weighs against default judgment, that 25 single factor is not enough to preclude imposition of this sanction when the other four 26 factors weigh in its favor.”) 27 / / / 28 / / / 1 || TIL. Conclusion and Order 2 The Court DISMISSES this civil action in its entirety based on Plaintiff's failure to 3 || satisfy the filing fee requirement and failure to prosecute this action. The Court DIRECTS 4 || the Clerk to enter a final judgment of dismissal and close the file. 5 || Dated: June 2, 2023 VU 6 Hgn. John A. Houston 7 ynited States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4